4 Watts 160 | Pa. | 1835
—Each party sued out a writ of error in this case. It appears to be an action of assumpsit, brought in that court by Thomas Wilson, surviving administrator of John Adams deceased, against Thomas Adams and John Douglass, administrators of James Adams-deceased, to recover two several sums of money. The one mentioned in the first count of the declaration is 455 dollars; which the plaintiff claims of the defendants on the following ground. James Adams, the intestate of the defendants, in his lifetime became the highest bidder at a sale then making-of the real estate of John Adams, the intestate of the plaintiff, by the sheriff, under an execution upon a judgment obtained against the plaintiff as administrator for a debt of his intestate. The property was struck down to James Adams ; he, however, failed to pay the sum bidden by him, which was 1800 dollars; and the estate was sold afterwards by the sheriff under an alias venditioni exponas to another person for 1345 dollars. All the personal assets had been exhausted by the plaintiff in paying the debts of his intestate. And by reason of his having misapplied some portion of them in paying simple contract debts, instead of specialty debts which remained unpaid, amounting ro some 400 or 500 dollars, he had to pay these specialty debts out of his own funds, and by this means became, as he alleged, a creditor of the estate. The 1800 dollars bidden by James Adams for the real estate, had he paid the amount, would have been about sufficient, as is said, after paying all the debts of John Adams that remained unpaid, to have reimbursed the plaintiff the amount paid out by him. The plaintiff being administrator of John Adams, and conceiving himself individually injured by the delinquency of the defendant’s intestate in not paying the 1800 dollars to the sheriff, seemed to think that he had a sort of double right to maintain this action to recover 455 dollars, the difference between the sum bidden by James Adams and that for which the real estate of John Adams was afterwards sold ; and that the law, under the circumstances of (he case, implied a
The only contract or provision made by the intestate of the defendants for the payment of the 1800 dollars, or any portion of it, was made with, or to the sheriff who was authorized by law to sell the estate. The sheriff, in making the contract of sale with James Adams, was not acting as the agent of the plaintiff; nor yet of any one else. He is considered the principal himself in such cases, and the legal as well as real party making the contract of sale. Although it be true that he acts in the character of a trustee, yet it must be borne in mind that it is as an officer of the law that he does so; and that it is from the law he derives all his power and authority: and in sales of property made by him as sheriff under this authority, he alone has the right to receive the money arising therefrom, and is responsible for the legal appropriation of it, unless it is brought by him into court for that purpose. It would inevitably produce great confusion and clashing of suits to permit other persons, beside the sheriff, in their own names to maintain suits against the sheriff’s vendees for breaches of their contracts made with him. It would also be inconsistent with every principle of analogy in the law. The court were right, then, in directing the jury that the plaintiff was not entitled to recover the money in question, because there was no privity of contract between him and the intestate of the defendants. There was none, most certainly, either in fact or in law. The judgment of the court below, on this part of the plaintiff’s claim, is therefore affirmed.
I come now to consider the case under the writ of error sued out by the defendant below, who alleges that the court below erred in their charge to the jury in directing them that the plaintiff was entitled to recover from the defendant as the administrator of James Adams, the other sum of money mentioned in the second count of the declaration. The grounds upon which this last sum, amounting to 100 dollars 66 cents, beside interest, was claimed to be recovered, were these: James Adams, the intestate of the defendant, was one of the children and heirs of John Adams, the intestate of the plaintiff, and, as such, took possession of his father’s real estate on his death, and occupied it from 1824 to 1827, a space of three years, without having any agreement whatever with anyone respecting the use of it. He was a creditor of his father’s estate; and the plaintiff below having failed to perform the condition of his administration bond, a suit was brought on it against him and his sureties, in which a cau
The court, upon these circumstances being given in evidence, and there being no attempt to controvert the truth of them, instructed the jury that the plaintiff could recover the 100 dollars and 60 cents
cited, Doran v. Holdship, 1 Penns. Rep. 1.
cited, M’Coy v. Scott, 2 Rawle 222.
It has, however, been said in the argument of this case, that the administrator of John Adams, the plaintiff below, was charged with the profits of the real estate at the instance of James Adams, in the writ of scire facias, where the proceeding took place in which it was done. This, is certainly not supported by the record, or any thing that appears on the face of the proceedings : on the contrary, it is apparent that the profits of the real estate were charged against James Adams, in favour of the administrator, for the purpose of defeating his claim against the estate; and as James Adams could not well be thus charged, without a corresponding charge being made against the administrator, it is much more likely that, the plaintiff sought to have himself charged with them, in hopes too that he would not only thereby extinguish the claim of James Adams against the estate of his father, but that he would also get something by it from James to reimburse himself some portion of the money which he says he is out of pocket by paying debts against the estate. This conclusion is fortified by the circumstance of the plaintiff below not only acquiescing in the report of the auditor, but from his having opposed its being set aside, when James Adams applied to, and moved the court for that purpose. This part of the case, brought to our view under the writ of error sued out by the defendant below, then presents the bare naked question, whether the administrator has a right to demand and to recover from the heirs of the intestate, the rents, issues and profits of the real estate, descending to them from their ancestor, which have accrued and been received by them since his death, for the purpose of paying the debts of the deceased, or reimbursing himself moneys which he may have paid out of his own funds, in discharge of the same. The case of M’Cov v. Scott, already cited, is a decisive answer, that he has no such right.
The judgment of the court against the defendant below, is therefore reversed.